Gent v. State, 5-3529

• Decision Date: 24 May 1965
• Docket Number: No. 5-3529,5-3529
• Citation: 239 Ark. 474,393 S.W.2d 219
• Parties: GENT, Swank, Modern Man, Bachelor, Cavalcade, Gentleman, Ace and Sir Magazines, Appellants, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 219

393 S.W.2d 219

239 Ark. 474

GENT, Swank, Modern Man, Bachelor, Cavalcade, Gentleman, Ace and Sir Magazines, Appellants, v. STATE of Arkansas, Appellee.

No. 5-3529.

Supreme Court of Arkansas.

May 24, 1965.

Rehearing Denied Sept. 30, 1965.

Robert C. Downie, Edwin E. Dunaway, Little Rock, Gregory & Claycomb, Pine Bluff, for appellants.

Bruce Bennett, Atty. Gen., by William L. Patton, Jr., Asst. Atty. Gen., Little Rock, for appellee.

HARRIS, Chief Justice.

This appeal is from a decree of the Jefferson Chancery Court, holding that certain magazines were obscene. The court enjoined the appellants from sending, bringing, or causing to be brought, into Jefferson County for sale, exhibit, or gift, any of these magazines, and ordered them destroyed. Jurisdiction was retained to determine whether any future issues are obscene, and appellants were 'notified that any future distribution of obscene publications, as set out, and found above, to be obscene, will also be restrained and enjoined and magazines will be removed.' Included in the injunction were W. E. Burnham, Jr., county distributor of the magazines, and John Nickell, operator of a newsstand, which sold the magazines. The particular publications held to be obscene were Swank, Gent, Modern Man, Bachelor, Cavalcade, Gentleman, Ace, and Sir. ¹

The case arose upon complaint of the Prosecuting Attorney that the magazines were obscene, and in violation of Act 261 of the General Assembly of 1961 (Ark.Stat.Ann. § 41-2713-2728 [Repl.1964]). The Chancellor impaneled, on motion of the state, an advisory jury, which, at the conclusion of an extended trial, unanimously found all magazines listed to be obscene. The court also found the magazines to be obscene, and issued its injunction. From the decree so entered appellants bring this appeal.

One preliminary matter needs to be disposed of. The court refused to permit Gent to file an answer, holding that the answer had not been tendered in time, and the judgment, as to this publication, was taken by default. We think the court erred. General counsel for the publication of Gent, in New York, wired the court on March 11, 1964, asking for a continuance, for the purpose of obtaining suitable counsel. The Chancellor replied by letter, acknowledging the telegram, and stating, 'The cause was continued yesterday to be heard April 28, at 9:30 AM.' Local counsel was subsequently retained, and tendered a response on April 24. We think the Chancellor's reply, which neither denied the request, nor indicated that the court had no authority to grant same, could well have been taken by New York counsel to mean that Gent had until April 28 to file an answer. Accordingly, appellant's request that it be made a party to this appeal, and that its argument on the merits of the appeal be considered by this court, is granted.

For reversal, seven alleged errors are asserted; however, some of these errors relate to the selection of, and instructions given to, the jury. Error is also asserted because of the court's refusal to admit into evidence other magazines and articles, as a matter of comparison, and the refusal to permit counsel to inquire from the state's witnesses whether they considered these other publications obscene. However, during oral argument before this court, counsel for all appellants requested that we make a determination on the merits, i. e., that we decide whether the magazines are obscene, rather than remand the case because of error committed during the trial. We therefore, do not consider the alleged errors heretofore mentioned. Suffice it to say that we agree that procedural error was committed, but in compliance with appellants' request, we disregard legal mistakes committed in selecting and instructing the jury, and proceed to a discussion of the principal issue. ² In doing so, we enter into a field marked and characterized by uncertainty. In fact, we know of no area of the law in which there is more confusion, and the most recent opinion handed down by the nation's hightest court, rather than contributing to clarity, has actually compounded the confusion.

In 1957, the United States Supreme Court decided the case of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. After holding that obscenity is not within the area of constitutionally protected speech or press, the court stated:

'The early leading standard of obscenity allowed material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons. Regina v. Hicklin [1868] L.R. 3 Q.B. 360. Some American courts adopted this standard but later decisions have rejected it and substituted this test: whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appals to prurient interest. ³ The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press. On the other hand, the substituted standard provides safeguards adequate to withstand the charge of constitutional infirmity.'

Following this decision a number of states, through their legislatures, adopted the italicized standard. In 1961, the Arkansas General Assembly passed Act 261, which defines the word, 'obscene,' in the exact language set forth in the Roth case.

Appellants, for reversal, rely upon the more recent case of Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793, and assert that this case makes clear that the 'contemporary community standards,' mentioned in Roth, actually refers to a 'national' community, rather than a 'local' community. Appellants vigorously argue that Jacobellis determined conclusively that the 'national community standard' must be applied. We cannot accept this contention, since it does not appear that five judges, constituting a majority of the court, agreed upon the 'national community' standard. The case was decided by a six to three vote, in which the lower court was reversed. There was no court opinion. Mr. Justice Brennan announced the decision, and wrote an opinion. Mr. Justice Goldberg concurred in Mr. Justice Brennan's opinion, but also filed a separate opinion of his own. Justices Douglas, Black, and Stewart concurred in the judgment of reversal, the first two on the basis that the Constitution does not permit censorship at all, and Mr. Justice Stewart, in a separate opinion, stating that the constitution only permits censorship of 'hard core pornography;' further, 'I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligible doing so. But I know it when I see it, and the motion picture involved in this case is not that.' Mr. Justice White concurred in the judgment for reversal, without expressing a reason. The Chief Justice, joined by Justice Clark, in a dissenting opinion, rejected the national standard, which Justices Brennan and Goldberg stated the court must apply. Mr. Justice Harlan likewise dissented, saying:

'* * * The more I see of these obscenity cases the more convinced I become that in permitting the States wide, but not federally unrestricted, scope in this field, while holding the Federal Government with a tight rein, lies the best promise for achieving a sensible accommodation between the public interest sought to be served by obscenity laws * * * and protection of genuine rights of free expression. * * *'

Thus, it appears that only two justices of the prevailing six adopted the national community standard. It is therefore evident that a majority of the court, whatever may be the thinking, have not flatly said that the national standard must be applied. Much has been written about the Jacobellis case, and we think one of the most comprehensive articles (or notes) appears in 40 Notre Dame Law., P. 1 (Dec. 1964). ⁴ The article states:

'According to the opinion of Mr. Justice Brennan in Jacobellis v. Ohio, the Supreme Court itself must weigh and decide the issues in obscenity cases; it must decide whether the disputed material is obscene; and it must decide this according to the standards of the community, that is, the whole country--all 50 States. In other words, the Court must apply a national standard. This note is addressed primarily to that opinion.'

After pointing out that, though critical, the writers intend nothing derogatory toward the court or its individual members, it is further stated:

'Indeed, it is precisely because of our respect that we venture to suggest what seems to promise a way out of the total confusion which envelopes the problem of obscenity as a result of the opinions in some recent Supreme Court cases and the entire absence of opinion in others.'

The article then notes that Justice Brennan sets out in his opinion that the Supreme Court must ultimately decide when a particular work is obscene, and the article poses the question of the logic of the court itself deciding obscenity cases when it does not decide for itself matters of equal or greater importance; for instance, whether a convicted murderer, when firing a fatal shot, was capable of distinguishing right from wrong, or was under a compulsion so strong that he was without power to resist it. These matters, of course, are determined by a jury. It is the opinion of the writers of the article that the Supreme Court, in deciding that it is the duty of the court to make its own independent decision of the issues in obscenity cases, has committed itself to an impossible task. 'Not only has the Court assumed an impossible task, that is, to make its own independent decision of the issues in obscenity cases, but, in so doing, if the opinion of Mr. Justice Brennan is followed, it must apply an absolutely impossible...